Constantine Spathis, Plaintiff-Respondent v. Alina Dulimof-Spathis

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.

Judgment, Supreme Court, New York County (Marilyn T. Sugarman, Special Referee), entered August 24, 2011, dissolving the parties' marriage and, inter alia, ordering plaintiff to pay pendente lite maintenance arrears of $25,500 over a period of nine months after entry of judgment, awarding plaintiff $49,087.05 as and for a distributive award, to be paid by defendant over 18 months after entry of judgment, and denying counsel fee awards to both parties, unanimously modified, on the law and the facts, to: 1) substitute the sum of $31,750 for the amount of maintenance arrears; 2) substitute the sum of $9,137.23 for the distributive award to plaintiff; 3) order plaintiff to transfer half of his Partsearch shares to defendant, and otherwise affirmed, without costs. Appeal from order, same court and Special Referee, entered May 31, 2011, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court and Special Referee, entered April 26, 2012, which denied defendant's posttrial motion, unanimously affirmed, without costs, insofar as it dismissed the motion on procedural grounds.

The court correctly found that plaintiff's interest in his business - CE Interactive - could not be distributed because the court-appointed forensic accountant found that the business had no value.

The court correctly found that defendant could not be awarded a portion of the appreciation in the value of the marital apartment, which was plaintiff's separate property, because defendant failed to demonstrate that the property in question increased in value (see Embury v Embury, 49 AD3d 802, 804 [2nd Dept 2008]). Neither party submitted expert appraisals or testimony regarding the apartment (see Burgio v Burgio, 278 AD2d 767 [3rd Dept 2000]).

However, defendant should have been awarded half of the mortgage payments made on the apartment with marital funds. Indeed, when marital funds are used to pay off separate liabilities or to increase the value of separate property, "a court has the authority to effectively recoup [such] marital funds . . . and to distribute such funds to the parties in accordance with Domestic Relations Law § 236(B)(5)(c)" when equity warrants such recoupment (Micha v Micha, 213 AD2d 956, 957 [3rd Dept 1995]; Carr v Carr, 291 AD2d 672 [3rd Dept 2002]; Mahoney-Buntzman, 12 NY3d at 421). Accordingly, we have reduced plaintiff's distributive award by $38,829.42, which is equivalent to half the marital funds used to make mortgage payments on plaintiff's apartment during the marriage.

At trial, defendant submitted evidence that she had incurred medical debt of $2,240.80 during the marriage. Accordingly, we have also reduced plaintiff's distributive award by half that amount or $1,120.40.

The evidence also established that plaintiff had Partsearch stock options which he received prior to the marriage, and were thus separate property (see Wechsler v Wechsler, 58 AD3d 62, 78-79 [1st Dept 2008], appeal dismissed 12 NY3d 883 [2009]). Plaintiff exercised those options during the marriage. The evidence at trial showed that $98,268.80 was transferred into the parties' joint checking account from an unknown source. Then, a check from the joint account was made payable to Partsearch in the amount of $99,656.25 to purchase those shares.

Plaintiff also failed to provide the court-appointed forensic expert with sufficient information to value his stock options at the time of the marriage or the present value of the Partsearch shares, and thus plaintiff cannot be credited in the amount of the value as of the date of the marriage of his right to acquire the shares of stock (see Wechsler v Wechsler, 58 AD3d at 78-79). Nor can the value of the shares be distributed since the same is unknown. In such circumstances, it is necessary and appropriate to resolve the issue by ordering an in-kind distribution of the shares, and we have modified the judgment accordingly.

The trial court providently exercised its discretion in denying maintenance. "[I]t is well settled that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts" (Wortman v Wortman, 11 AD3d 604, 606 [2004]). Defendant was awarded pendente lite maintenance for longer than the length of ...

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